F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

AUG 23 2000

PATRICK FISHER
Clerk

KEVIN THOMAS FORD,

Plaintiff-Appellant,
v.
ROGER CUMMINGS, C.O.;
DOUGLAS WETTLAUFER, C.O.,

No. 99-6377
(D.C. No. 97-CV-233)
(W.D. Okla.)

Defendants-Appellees
and
KATHLEEN HAWK; JOHN DOE,
Unknown Correctional Officer for the
Federal Transfer Center; LEON
BALL,
Defendants.
ORDER AND JUDGMENT

Before BALDOCK , KELLY , and HENRY , Circuit Judges.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Following a bench trial on plaintiff Kevin Thomas Fords claim that
defendant correction officers Cummings and Wettlaufer subjected him to cruel
and unusual punishment in violation of the Eighth Amendment while he was
incarcerated at the Federal Transfer Center in Oklahoma City, the district court
entered judgment in favor of defendants. Although represented by counsel at
trial, the district court granted counsels motion to withdraw after counsel stated
he saw no meritorious grounds for appeal. Plaintiff therefore proceeds on appeal
pro se.
In this action brought pursuant to

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics , 403 U.S. 388 (1971), plaintiff alleged that
Cummings entered his cell and beat him with a ring of jailers keys and that
Wettlaufer observed the incident, but did not intervene on plaintiffs behalf.
During plaintiffs testimony at trial, plaintiffs counsel showed plaintiff a ring of
jailers keys introduced as evidence by defendants and the following colloquy
ensued:
Q. Does this look like the keys [Cummings] had in his hand that
day?
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A. Similar. All those guys wear pretty much the same thing.
Q. Do you remember how many keys he had?
A. No, not really. I couldnt tell you. I dont exactly know.
Trial tr. at 18 (attachment A to appellees brief). On appeal, plaintiff contends
that the ring of keys introduced at trial contained twenty to twenty-five keys, but
that the ring Cummings actually used to beat him contained only four keys. He
contends that defendants fraudulently manufactured the ring of keys introduced
at trial and that the courts consideration of this evidence is reversible error. He
also contends that his counsel provided constitutionally ineffective assistance in
failing to object to the introduction of the keys and to question any witnesses
regarding the number of keys on the actual ring Cummings allegedly used.
Ordinarily, this court would review plaintiffs first issue, which we
construe as a challenge to the district courts admission of evidence, for abuse of
discretion. See, e.g. , Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995).
Here, however, there was no objection to the introduction of the evidence.
Assuming we would review the issue for plain error,

see Fed. R. Evid. 103(d), it

is clear there was no error--plaintiffs own testimony quoted above belies his
contention of impropriety on the admission of the ring of keys.

Cf. Koch v. Koch

Indus., Inc. , 203 F.3d 1202, 1215 (10th Cir. 2000) (The invited error doctrine
prevents a party from inducing action by a court and later seeking reversal on the
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ground that the requested action was error.) (quotation omitted),

petition for

cert. filed , 68 U.S.L.W. 3023 (U.S. July 3, 2000) (No. 00-28).

While the factual basis for plaintiffs second claim is also contradicted by
his own trial testimony, even more importantly, this claim fails because plaintiff
has no constitutional right to counsel in a

Bivens action. See MacCuish v. United

States , 844 F.2d 733, 735 (10th Cir. 1988).

We conclude this appeal lacks any arguable basis in law or fact, and deem
it to be frivolous under 28 U.S.C. 1915(e)(2)(B)(i). The appeal is hereby
DISMISSED as frivolous pursuant to 1915(e)(2)(B), and this dismissal counts
as a strike pursuant to 1915(g). Plaintiffs request for a copy of the trial
transcript at no charge is DENIED. The mandate shall issue forthwith.

Entered for the Court

Bobby R. Baldock
Circuit Judge

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